Delhi District Court
Joginder Singh Ans. vs . Ms Minerals Metals Trading ... on 12 May, 2023
CS SCJ 82510/16
JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION
(MMTC)
IN THE COURT OF MS. NEHA SHARMA, CIVIL JUDGE-01
(SOUTH) SAKET COURT, NEW DELHI
Civil Suit No :- 82510/16
CNR No :- DLST03-000142-2014
1. JOGINDER SINGH
S/O LATE SHRI CHANDER SINGH
R/O 153, Lado Sarai
New Delhi
2. NARENDER SINGH
S/O LATE SHRI CHANDER SINGH
R/O 153, Lado Sarai
New Delhi ..............PLAINTIFFS
Versus
M/S MINERALS AND METALS TRADING CORPORATION
OF INDIA LTD.
Through its Secretary
Shastri Bhavan,
New Delhi ..............DEFENDANT
SUIT FOR DECLARATION OF EASEMENTARY
RIGHTS/PERMANENT INJUNCTION AND MANDATORY
INJUNCTION
Page No. 1 of 32
(Neha Sharma)
CJ-01/(South) Saket Court/New Delhi
CS SCJ 82510/16
JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION
(MMTC)
JUDGMENT
1. This is the suit for the reliefs of declaration of easementary rights, permanent injunction and mandatory injunction filed by the plaintiffs.
THE CASE OF THE PLAINTIFF
2. Succinctly, the case of plaintiffs is that their ancestors were the absolute owners having full rights, title and ownership of a large chunk of self-cultivated land in Khasra no. 94, Jamabandi No. 22, Khatoni No. 41, admeasuring about 11 bighas 10 biswas in Village Begum Pur, Tehsil Mehrauli, Delhi (now New Delhi) from early 19th century, which is evident from revenue records pertaining to 1948-49. In the year 1928, Tek Chand constructed a two-room house in the said land owned by him besides four shops and a well for the purpose of irrigation. That for the valour and heroics shown by Sh. Tek Chand, a Samadhi with a Chatri was constructed in his honour by the villagers in the said piece of land. Sh. Tek Chand had a house in Village Lado Sarai from where he, his relatives, his friends and persons who had taken the four shops on rent used to visit the said Samadhi for paying their respects to Late Subedar Major Tek Chand and buy articles from the shops.
3. The rasta from Lado Sarai to suit property was a natural rasta used as a right and as a necessity for peaceably enjoying the said piece of land. After the death of Sub Major Tek Chand, the land was inherited by his two sons namely Chander Singh and Bir Singh.
Page No. 2 of 32(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) Vide notification no. F. 15(111)/59-LSG dated 13.11.1959, issued under the authority of the Chief Commissioner, Delhi, about 54 bighas of land belonging to different persons, having different Field Nos. and their respective areas including the land of Khasra No. 94/2 was proposed to be acquired by the Land Acquisition Officer of Tehsil & District Delhi and after hearing objections of the landowners 11 bighas of land belonging to father and uncle of the plaintiffs, namely Chander Singh & Bir Singh was acquired vide award No. 1327 dt. 01.06.1962.
4. The father and uncle of the plaintiffs had represented to the Land Acquisition Officer, Delhi, that the portion of Khasra No. 94 on which there existed a house, a Chhatri and a well be excluded from acquisition. Even till date the said piece of land has not been acquired by any award/authority and continues to be owned by the plaintiffs. A suit for partition jointly moved by the late Chander Singh & Late Bir Singh in the Court of Sub Divisional Magistrate bearing no. SDM/W/RA Case Bi, 21/RA/86 dt. 29.01.1988, the names of Chander Singh S/o Tek Chand was incorporated in the Revenue records maintained by the Patwari. Thereafter, by means of family partition, 2/3rd of land of Field No. 94 (measuring approximately 326 sq. yds.) came to the share of Sh. Chander Singh, father of the plaintiffs herein and the name of Sh. Chander Singh appears in the Jamabandi record which is being filed separately.
Page No. 3 of 32(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC)
5. In 1928, the plaintiffs undertook fresh construction of building built on the suit land and the entire construction material reached the site using motorable roads through the MMTC Colony without any objection whatsoever from the MMTC because the eastern, western and northern sides of the suit property had been acquired by the DDA and it had DDA Tubewell & Park in the East, DDA Park in West and North and the road and MMTC Colony in the South. It is stated that the only way to approach road to their plot/premises through roads/pathways existing on the south of MMTC Colony and north of their above plot/property including Samadhi built thereon and there is no other rasta to approach their property. A barber shop, a tailor's shop, a marble supply shop and one Tewari General Stores selling general store items, tea, snacks, sweets etc. to customers including the residents of the MMTC Colony existed there. It is also stated that access / opening to the Samadhi and the four shops for the purpose stated above is through the said road on the south in between the MMTC Colony and the suit property. Even after building the MMTC/STC Colony, the father of the plaintiffs, their friends and relatives, customers and even residents of the Colony continued to have access to the house and shops located on the suit property and even the MMTC residents used to go to DDA park using the side boundaries of the suit property without any hindrance and for more than 22 years after acquisition of land whereby 11 bighas of land belonging to the Page No. 4 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) plaintiffs were acquired and leaving 10 biswas of land/Samadhi/ well as stated above.
6. In the last week of November 1984, the father of the plaintiffs, learnt that the defendant was constructing a wall around the Colony and in the process intended to block the road to the aforesaid property of the plaintiffs effectively closing all means of ingress and egress / obstructing the right of way of plaintiffs including their friends, relatives, the shopkeepers and the customers which they had been peacefully enjoying as a matter of right for last more than fifty years. The father of the plaintiffs then personally met the officials of the defendant, however, the officials failed to take a pragmatic view and showed their inclination of covering the suit property and thus obstructing approach to the suit property including Samadhi of Sub Maj Tek Chand. Looking into the adamancy of the officials and their act of covering the suit property by constructing the pucca boundary wall thus covering the road on the south of the suit property, the father of the plaintiffs filed a civil suit no. 620/84 (later renumbered as S-590/06/84) in the Court of Sub Judge, 1st Class (later Sr. Civil Judge), Tis Hazari Courts, Delhi. Realizing their illegal, unjustified and untenable act, the defendant left a 3 ft. wide passage for the suit property but simultaneously installed a grilled gate which was kept open all the time for free ingress and egress of the plaintiff, their relatives & friends, shopkeepers and also for the residents of MMTC colony.
Page No. 5 of 32(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC)
7. It is also pertinent to mention that besides this opening of 3 ft. wide passage for the essential free use of the suit property, there existed two more wicked gates on the boundary wall. During the pendency of the said suit, Sh. Chander Singh expired on 09.03.1997 and based on a Will executed by the deceased Chander Singh, the suit property, vide entry no. 984, was mutated in the joint names of the plaintiffs. In 1990s, the STC officials vacated the Colony and the building made thereon came to be exclusively occupied by the MMTC officials and it came to be known as MMTC Colony.
8. The Trial Court dismissed the suit of the plaintiffs on 05.05.2009 and the First Appellate Court did not allow the appeal of the plaintiffs vide its order dated 06.08.2011. The Hon'ble High Court granted liberty to the appellants, as prayed for, to file a suit for claiming easementary rights in accordance with law and consequently, the present suit has been filed seeking the relief as mentioned in para no. 1 of the judgment.
THE CASE OF THE DEFENDANT
9. Per contra, the preliminary objection raised by the defendant are that in the present suit, defendant has not been impleaded correctly as suit has been filed against Minerals and Metals Trading Corporation though the name has been changed to MMTC Ltd. Further, the suit is barred by the principle of constructive res-judicata, law of limitation as cause of action, if any, Page No. 6 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) had occurred in the year 1984 and non-joinder of other LRs of the plaintiffs.
10. On merits, contents of the plaint were denied and it was submitted that plaintiffs have no right or title in respect of the adjoining land. It was denied that plaintiffs have only one road to approach the plot/premises through road/pathway existing to South of MMTC colony. It was mentioned that Government of India had allotted land to MMTC and STC Colony which was constructed in 1984-85 and boundary wall was constructed for the security of the residents which belonged to MMTC Colony. It was therefore contended that plaintiffs do not have any rights of any passage from MMTC rather plaintiffs have access from the DDA Park and the land which was permitted to be used without any hindrance. It was further submitted that there was no passage for shopkeepers or plaintiffs from the MMTC Colony and further they did not have any legal right to access from the MMTC Colony. The rest of the contents of the plaint were denied and it was prayed that the present suit is liable to be dismissed as it has been filed without any cause of action.
REPLICATION
11. In replication the plaintiffs have denied the contents of written statement and reiterated the averments of plaint. FRAMING OF ISSUES
12. Vide order dated 02.02.2016, following issues were Page No. 7 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) framed by the Ld. Predecessor of this court:
Issue No. 1 Whether the plaintiff is entitled to relief of declaration as prayed for? OPP Issue No. 2 Whether the plaintiff is entitled to relief of mandatory injunction to have free and uninterrupted right to ingress and egress the suit property through the motorable road/pathways of MMTC Colony including the three feet wide passage? OPP Issue No. 3 Whether the plaintiff is entitled to damages as prayed for? OPP Issue No. 4 Whether the present suit is barred by constructive res-judicata? OPD Issue No. 5 Whether the suit is barred by law of limitation? OPD Issue No. 6 Whether the suit is bad for non-joinder of necessary parties? OPD1 Issue No. 7 Relief.
EVIDENCE
13. In order to prove its case, plaintiff examined himself as PW-1 and tendered his affidavit as Ex. PW1/A. He relied upon following documents: -
(i) Ex. PW1/1 i.e. Revenue Record/ receipt dated 25.02.1998;
(ii) Ex. PW1/2 i.e. Photograph of Samadhi;Page No. 8 of 32
(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC)
(iii) Ex. PW1/3 i.e. Certified copy of award no. 1327 dated 01.06.1962;
(iv) Ex. PW1/4 i.e. Joint application moved before LAO;
(v) Ex. PW1/5 i.e. Jamabandi of suit land;
(vi) Ex. PW1/6 i.e. Land devolution on plaintiff in revenue record;
(vii) Ex. PW1/7 i.e. Receipt of suit land revenue;
(xiii) Ex. PW1/8 i.e. Site plan;
(ix) Ex. PW1/9 i.e. Notorized copy of court order settlement of case with Mr. Tiwari tenant of the suit land.
(x) Ex. PW1/10 i.e. Receipt of amount paid to Mr. Tiwari;
(xi) Ex. PW1/11 i.e. Copy of letter dated 18.02.1999 from Director (LM);
(xii) Mark PW1/A (Ex.PW1/11A in affidavit de-exhibited and marked as Mark PW1/A i.e. Copy of demarcation of suit land by revenue authority (original with Tehsildar).
14. PW-1 was completely cross examined by the Ld. Counsel for the defendant. Sh. Devesh Kumar Chaturvedi and Sh. Bachan Singh were examined as PW-2 and PW-3. They tendered their affidavit of evidence as Ex. PW 2/A and Ex. PW 3/A respectively. They were duly cross-examined by the Ld. Counsel for the defendant. Thereafter, evidence was closed by Ld. Counsel for the plaintiffs vide separate statement dated 30.01.2019 and matter was listed for DE.
Page No. 9 of 32(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC)
15. Sh. S.K. Dutta, AR of the defendant was examined as DW-1 who tendered his affidavit of evidence as DW 1/A and relied upon documents i.e. Ex. DW 1/1 to Ex. DW 1/12. He was duly cross-examined by Ld. Counsel for the plaintiffs. Thereafter, evidence was closed by AR of the defendant vide separate statement dated 05.08.2019 and matter was fixed for final argument. FINAL ARGUMENTS:
16. Final arguments advanced by both parties were heard on 01.09.2022. Ld. Counsels of both the parties presented their arguments in accordance with the pleadings. Ld. Counsel for plaintiff has argued that defendant is a company registered under the Companies Act. He submits that in the original suit, easementary right was not claimed and the present suit is not barred u/O II Rule 2 CPC as leave of the Hon'ble Delhi High Court was taken. On the other hand, Ld. Counsel for defendant has argued that the original suit filed by the plaintiff was dismissed in 1994 and the appeal was also dismissed. Thereafter, leave was granted by the Hon'ble Delhi High Court to file a fresh suit claiming easementary right but the findings of the trial court were not set aside. Thus, suit is barred by constructive res judicata.
FINDINGS:
17. I have carefully perused the entire case record including the pleadings and evidence. I have also gone through the prevailing law in this regard and have heard the submissions of the learned Page No. 10 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) counsels of both the parties. My issues-wise findings are as under:
ISSUE NO. 1Whether the plaintiff is entitled to relief of declaration as prayed for? OPP ISSUE NO. 2 Whether the plaintiff is entitled to relief of mandatory injunction to have free and uninterrupted right to ingress and egress the suit property through the motorable road/pathways of MMTC Colony including the three feet wide passage? OPP AND ISSUE NO. 3 Whether the plaintiff is entitled to damages as prayed for? OPP
18. The onus to prove these issues is upon the plaintiff. As findings on these issues require common discussion of facts and law, they are being taken up together. The plaintiffs have claimed that their ancestors were absolute owners of the land and after the death of Sub Major Tek Chand, the land was inherited by his two sons namely Chander Singh and Bir Singh and after Sh. Chander Singh expired on 09.03.1997, the suit property, vide entry no. 984, was mutated in the joint names of the plaintiffs on the basis of a Will executed by the deceased Chander Singh.
19. In order to prove their case, plaintiff no. 1 examined himself as PW-1. During cross-examination, PW-1 deposed that the land claimed is ancestral land and his documents relating to his Page No. 11 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) ownership of the land are exhibited as Ex. PW1/1 to Ex. PW1/11. Now, Ex. PW1/1 is the Revenue Record/ receipt dated 25.02.1998, Ex. PW1/2 is the photograph of samadhi not accompanied with any certificate under Section 65B Indian Evidence Act, Ex. PW1/3 is the certified copy of award no. 1327 dated 01.06.1962 and Ex. PW1/4 is the copy of joint application filed by the deceased father of plaintiffs and his brothers, claiming ownership in the Khasra no. 94 measuring 11 bighas 10 biswas. Firstly, by virtue of these documents, plaintiffs cannot claim ownership in their land and secondly, no reliance can be placed on these documents as they are mere copies and plaintiffs have not proved the documents in accordance with law.
20. Next, PW-1 has relied upon Ex. PW1/5 i.e. copy of Jamabandi which shows Tek Chand to be the land owner for the year 1948-49 and Ex. PW1/6, again copy of Jamabandi which shows the name of plaintiffs to have been mutated in the Jamabandi on the basis of will. In Harish Chander and Others v. Ghisa Ram and Anr. (1981) 1 SCC 431, it was held that the entries in the Jamabandi carry presumption of truth but such presumption is rebuttable under Section 45 of the Indian Evidence Act. Thus, the entries in Ex. PW1/5 and PW1/6 although carry a rebuttable presumption but these documents have to be proved. The primary evidence has not been filed and no leave for leading secondary evidence has been taken by the plaintiffs.
Page No. 12 of 32(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC)
21. The court cannot conclude regarding the right, title and interest of plaintiffs in their property on the basis of Ex. PW1/9 i.e. the order dated 24.04.1999 in suit no. 504/97, Ex. PW1/10 i.e. Receipt of amount paid to the tenant, Ex. PW1/11 i.e. Copy of letter dated 18.02.1999 from Director (LM) and Mark PW1/A i.e. Copy of demarcation of suit land by revenue authority (original with Tehsildar). It is trite that mere production of documents or exhibition thereof in the Court does not amount to proof of documents and contents thereof. The plaintiffs have not filed the original documents but only copies which have also not been proved in accordance with law. The plaintiffs did not even examine any witness from the concerned office to prove these documents. Thus, plaintiffs have failed to establish their title over their land.
22. Next, the plaintiffs have claimed easementary right over the rasta on the south of the property of the plaintiffs. It is stated that the rasta from Lado Sarai to suit property was used as a right and as a necessity for peaceably enjoying the piece of land of the plaintiffs. The term 'easement' has been defined under Section 4 of Indian Easements Act, 1882 (hereinafter referred to as "IEA") as a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being, in or upon, or in respect of, certain other land not his own. In Bachhaj Nahar vs Nilima Mandal & Ors. AIR 2009 SC 1103, the Page No. 13 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) Hon'ble Supreme Court held that;
"14. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally Page No. 14 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence."
23. The plaintiffs have pleaded that the only way to approach the property of the plaintiffs is through roads/pathways existing on the south of MMTC Colony and there is no other rasta. However, no proper site plan has been filed to prove the same. Ex. PW1/8 shows the land of plaintiffs surrounded with open land on three sides. The burden lies upon the plaintiffs to prove that the rasta/passage in question is the only way to approach their land however, nothing is tendered in evidence to prove the same.
24. As regards the right of easement, here it must be presumed that the plaintiff is seeking to establish a right of easement of way by 'necessity' and by 'prescription', although it is not specifically pleaded in the plaint. Section 13 IEA which makes provision for easement by way of necessity reads as under:-
Page No. 15 of 32(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) "13. Easements of necessity and quasi -
necessity: Where one person transfers or bequeaths immovable property to another,-
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons,-
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement; or Page No. 16 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC)
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless the different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section, clauses (a), (c) and (e) are called easements of necessity. Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee."
25. A bare perusal of the said section makes it clear that the easement by way of necessity can be claimed only in cases of transfer or partition of the dominant heritage which is not the case in the present case. It is specifically pleaded in the plaint that about 54 bighas of land belonging to different persons, having different Field Nos. and their respective areas including the land of Khasra No. 94/2 was proposed to be acquired by the Land Acquisition Officer of Tehsil & District Delhi. The order of acquisition of land was not challenged by the plaintiffs. Therefore, the plea of easement of necessity is not applicable in the present case. Now, Section 15 IEA which makes provision for easement by way of prescription is reproduced hereunder:-
"15. Easement by prescription : Where the access and use of light or air to and for any building have been peaceably enjoyed Page No. 17 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support, or other easement, shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contexted.
Explanation I: Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation II: Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by Page No. 18 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof, and of the person making or authorising the same to be made. Explanation III:
Suspensions of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section. Explanation IV: In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage. When the property over which a right is claimed under this section belongs to Government, this section shall be read as if, for the words "twenty years" the words "thirty years" were substituted."
26. The essential requisites of the easement by way of prescription are actual enjoyment of an easement, enjoyment should be open, peacable, as of right, without any interruption and for a period of twenty or thirty years, as the case may be. Reliance is placed on judgment of Hon'ble Delhi High Court in Ravinder Kumar Sajwal v. Delhi Development Authority wherein it is held that;
"26. From the afore-noted decisions, the legal norm which emerges is that the mere fact that a person proves that he had been using an easement openly, peaceably and uninterruptedly since a very long period does not lead to a presumption that he had been using the same 'as of right'. A person Page No. 19 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) claiming easementary rights by way of prescription must specifically plead and prove that he had been enjoying an easement 'as of right'.
27. In the instant case, there is one circumstance which has a material bearing on the said aspect of the matter.
28. As already noted in the preceding paras, appellant No.2, in his testimony as PW-2 had admitted the factum of acquisition of the suit land and its being placed at the disposal of the respondent and further admitted that no action was taken by the appellants to challenge the said acquisition.
29. The fact that the appellants did not challenge the acquisition of the land in question over which the right of way is being claimed as an easementary right, the appellants have obviously not exercised their right under Section 3(b) of the Land Acquisition Act 1894 which holds that a person claiming an easementary right is a person interested meaning thereby is a person who can object to the notification issued under Section 4 of the Land Acquisition Act or the declaration issued under Section 6 thereof. Needless to state, on possession of acquired lands being taken over, by virtue of the mandate of Section 16 of the Land Acquisition Act, the land vests in the appropriate government, in the instant case the central government, free of all encumbrances and thus the respondent got the right to the land when the same was Page No. 20 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) placed at its disposal by the central government, free from any encumbrance."
27. To establish acquisition of easement by prescription the plaintiffs are duty bound to prove that they have been peaceably and openly using the land of the defendant without interruption for the last 20 years. Admittedly, the boundary wall has been constructed in 1984. Thus, it cannot even be the case of the plaintiffs that they have been using the passage/rasta as a right for last twenty years before filing of the present suit. Moreover, the plaintiffs have failed to plead and prove the manner of disturbance or obstruction to the easementary right. PW-1 admitted during cross examination that the passage of 3 feet was left by the defendant for the ingress and egress of the residents of neighboring village and the same is left open as on today. The relevant portion of testimony of PW-1 recorded on 10.07.2017 is reproduced herein;
"It is correct that the passage of 3fts was left by MMTC for the ingress and outgress of the resident of neighbouring village and the same is left open as on today.
...
It is correct that a gate was installed by the MMTC in the opening of said passage. It is correct that the said passage is being used for ingress and outgress of the residents of the village. It is correct that the land of passage belongs to MMTC. Then said, 3fts passage belongs to me and not MMTC. (Vol.Page No. 21 of 32
(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) This is the reason, the 3fts passage was left by the MMTC).
It is correct that due to the boundary wall and gate there is no hindrance on the 3fts passage. It is correct that there is no inconvenience is caused in using the said passage.
...
It is correct that the passage is in front of four shops and I am also using the said passage for my ingress and outgress. It is wrong to suggest that the gate was installed for the security purpose by MMTC. It is wrong to suggest that the gate remained locked at night and it is open only in the morning and remain open till the evening.
(Vol. The gate remains open for 24 hours.)"
28. The relevant portion of testimony of PW-1 recorded on 28.07.2017 is reproduced herein;
"It is correct that between the boundary wall and shops of the plaintiff there is a road of 3 feet. It is correct that road is used as a passage for reaching our shops. ....
It is incorrect to suggest that due to installation of the gate, no inconvenience was caused to us. It is correct that we have access to our shops and residence by 3 feet road.
...
I am aware that officials and higher officials of MMTC resides in the said colony."Page No. 22 of 32
(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC)
29. Thus, it is admitted that plaintiffs have access to their property by the 3 feet road. The plaintiffs examined Sh. Devesh Kumar Chaturvedi as PW-2 who further admitted that between the boundary wall of MMTC Colony and the suit property, there is an existence of a passage/road which is used by the residents to go to their village. PW-3 further deposed in his cross examination that;
"It is correct that there is a narrow road between the boundary wall of MMTC colony and my shop. The said road can be used to ingress and egress from my shop. (Vol. When the boundary wall was constructed around 1985, only three feet space was left for passage because of which all the disputes started).
30. Thus, plaintiffs have failed to prove that there is an actual cessation of the enjoyment by reason of an obstruction by the act of the defendant. PW-1 stated in his cross examination that the three feet passage belongs to him and not the defendant but in cross examination dated 28.07.2017, he admitted that plaintiffs do not have any ownership right over the three feet road but only a right to use it as a passage. Ex. DW1/3 shows that PW-1 had admitted in the previous suit that boundary wall had been constructed for the safety of the residents. Thus, when plaintiffs have failed to provide their ownership of land and the manner of obstruction of easementary right, they are not entitled to any relief of declaration, mandatory injunction and damages. The judgment in HP State Page No. 23 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) Electricity Board v. Shiv K. Sharma 2005(2) SCC 164 upon which reliance is placed by plaintiffs is distinguishable on the facts of the present suit as there is nothing on record to show that there was any document by way of which plaintiffs received a right to use the said passage/rasta. Further, reliance placed upon judgments in Joy Auto Works and Ors. vs. Sumer Builders (P) Ltd. and another AIR 2009 SC(Supp.) 1429, Hero Vinoth (Minor) v. Seshammal (2006) 5 SCC 545 and Justiniano Antao and others v. Bernadette. B Pereira (SMT) (2013) 3 SCC 66 by Ld. Counsel for plaintiffs is also misplaced as they are distinguishable on the facts of the case and plaintiff is not claiming easement by grant. Accordingly, issue no. 1, 2 and 3 are decided against the plaintiffs and in favour of the defendant.
ISSUE NO. 4Whether the present suit is barred by constructive res-
judicata? OPD
31. The onus to prove this issue is upon the defendant. The defendant has claimed that the suit filed by the father of the plaintiffs for permanent and mandatory injunction was dismissed vide order dated 05.09.2009 and the appeal was also dismissed. The RSA No. 210/2011 preferred by the plaintiffs before the Hon'ble Delhi High Court, was dismissed as withdrawn vide orders dated 13.01.2014 but the findings were not set aside. It is claimed that the suit is barred by the principle of res judicata.
Page No. 24 of 32(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC)
32. The Ex. DW1/1 shows that previous suit was filed for the relief of permanent and mandatory injunction where the plea of easementary right was not a part of the pleadings. Ex. DW1/12 further shows that no issue with respect to easementary right was framed by the trial court vide order dated 12.12.1994. The Ld. Appellate court while dismissing the appeal vide order dated 06.08.2011 had observed in paragraph no. 22 and 23 that;
"22. Appellant has claimed easementary right in the suit land on the basis of the passage being used by the appellant and his ancestors for last many years. It has been held in Ravinder Kumar Sejwal & Anr. Vs DDA as reported in 2009 II AD (Delhi) 277, that "The legal norm which emerges is that the mere fact that the person proves that he had been using an easement openly, peaceably and un-interruptedly since a very long period does not need to a presumption that he had been using the same 'as of right. A person claiming easementary rights by way of prescription must specifically plead and proved that he had been enjoying an easement as of right."
23. A bare perusal of plaint and replication reveals that no such right has been pleaded and consequently has not been proved by the appellant/plaintiff. In the present appeal easementary right has been claimed by the appellant by relying on use of the passage through MMTC land for more than 50 years.
However, in view of the observations made above and in view of law laid down in Page No. 25 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) Ravinder Kumar Sejwal & Anr. Vs DDA (supra), the mere use does not establish easementary rights of the appellant."
33. Thus, when the matter was directly and substantially not in issue in the previous suit, the principle of res judicata cannot apply. The judgment in Vinod Kumar Singh and others vs. Devraj Singh and others, 2015 (35) RCR (Civil), Hukum Chand Vs. Delhi Development Authority 2008 152 DLT 565 on which reliance is placed by Ld. Counsel for defendant reiterates the trite proposition of law but are not applicable to the facts of the case.
34. Nevertheless, the principle of constructive res judicata emerges from Explanation IV when read with Explanation III both of which explain the concept of "matter directly and substantially in issue". Explanation III clarifies that a matter is directly and substantially in issue, when it is alleged by one party and denied or admitted (expressly or impliedly) by the other. Explanation IV provides that where any matter which might and ought to have been made a ground of defence or attack in the former suit, even if was not actually set up as a ground of attack or defence, shall be deemed and regarded as having been constructively in issue directly and substantially in the earlier suit. Therefore, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principle of constructive res judicata.
Page No. 26 of 32(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC)
35. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order II Rule 2 of the Code relates to reliefs which ought to have been claimed on the same cause of action but not claimed. The relevant provision under Order II Rule 2 is reproduced herein;
"Suit to include the whole claim: (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim: Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs: A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
36. In Gurbux Singh v. Bhoora Lal AIR 1964 SC 1810, it was held;
"In order that a plea of a bar under O. 2, R. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in Page No. 27 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar."
37. Thus, Order II Rule 2 CPC does not apply when leave is obtained from the Court to sue for the relief omitted for which the second suit had been filed. Reliance is also placed on order in R.M. Sundaram vs Sri Kayarohanasamy 2022 LAWPACK (SC) 66798. Admittedly, vide order dated 13.01.2014, the Hon'ble Delhi High Court had given liberty to the plaintiffs to file a suit for claiming easementary rights in accordance with law, thus, the plea of defendant that the suit was barred by constructive res judicata and Order II Rule 2 CPC is without any substance. Reliance on the judgment in Mohd. Aslam & Ors. vs Abdul Wahid & Ors. FAO(OS) 280/2012 filed by defendant is misplaced as it is not that the plaintiff herein was the defendant in the previous suit who might and ought to have taken the right of easement as a ground of Page No. 28 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) defence or attack but failed to do so. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 5Whether the suit is barred by law of limitation? OPD
38. The onus to prove this issue is upon the defendant. It is stated in the written statement that the suit of the plaintiffs is barred by law of limitation. It is stated that the cause of action for the present suit arose in the year 1984 and the present suit has been filed after about 30 years. Thus, the suit is hopelessly barred by time. Section 25(2) of the Limitation Act says that each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
39. In A. Sundar v. S.N. Jaiswal AIR 1988 Pat. 216, it has been held that in a suit for removal of obstruction of the easement right, the limitation is two years from the date of obstruction otherwise the suit will be barred by limitation. A claim for prescriptive right would be defeated if the period of user had terminated more than two years before the filing of the suit. The period of 20 years or more of enjoyment must end within two years before the institution of the suit otherwise the claimant cannot succeed.
Page No. 29 of 32(Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC)
40. In cross examination, PW-1 has admitted that "it is correct that the controversy involved in the present suit if of the year 1984. It is correct that construction of the boundary wall around the MMTC colony was completed around in the year 1985." Thus, admittedly, the cause of action to file the present suit arose in 1984 and the period to file a suit for easementary right ended in 1986. A plain reading of Section 25 of the Limitation Act shows that the suit ought to be filed within two years next from the date of the obstruction or discontinuance of that right which is claimed as an easementary right and the suit having not been filed within that period prescribed by Clause (2) of Section 25 of the Limitation Act, it stands defeated and the suit must be held to be barred by law of limitation as laid down in Section 25(2) of the Limitation Act.
41. Ld. Counsel for plaintiff has submitted that liberty to file a fresh suit for claiming easementary right in accordance with law was granted by the Hon'ble Delhi High Court vide order dated 13.01.2014 in RSA 210/2011. However, it is settled position that a court cannot extend the time limit prescribed by a statute for doing of a certain act or thing under the said statute unless some provision is made for extension of time in the statute itself and the authority which is given that power has wrongly refused to extend the time. The order dated 13.01.2014 of the Hon'ble Delhi High Court had only given liberty to the plaintiffs to file a suit for claiming easementary rights in accordance with law and it was observed that Page No. 30 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) if such a suit is filed the court dealing with the same will hear and dispose of the same in accordance with law. Thus, the suit filed after more than 30 years from date of cause of action is hopelessly barred by limitation under section 25 of the Limitation Act and plaintiffs are not entitled to any relief claimed.
ISSUE NO. 6Whether the suit is bad for non-joinder of necessary parties? OPD1
42. The onus to prove this issue lies upon the defendant however, the defendant has failed to aver and prove as to who is the necessary party who ought to have been impleaded, in whose absence, the suit ought to fail. The ownership of defendant over the rasta/passage is admitted by the plaintiff. In the written statement, defendant has pleaded that other legal representative of Late Sh. Chander Singh should have been made a party. This cannot be reason for which suit should fail as it is well settled that determination of the question as to who is the legal representative of the deceased plaintiff or defendant under Order 22 CPC is only for the purpose of bringing legal representatives on record for the conducting of those legal proceedings only. It is also stated by the defendants that previous suit was filed against many defendants, this argument is without substance as defendant has not averred and proved as to how the presence of other defendants is necessary for the adjudication and disposal of the present suit. Thus, in absence of Page No. 31 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 82510/16 JOGINDER SINGH ANS. Vs. MS MINERALS METALS TRADING CORPORATION (MMTC) any proof, this issue is decided in favour of the plaintiffs and against the defendant.
ISSUE NO. 7Relief.
43. In view of the findings on issues above, documents on record, pleadings of the parties, and evidence led, the plaintiffs have failed to stand on their own legs to prove their case. Accordingly, suit of the plaintiffs is dismissed. No order as to costs.
44. Decree sheet be prepared accordingly and file be consigned to Record Room after due compliance.
Pronounced in open court:
Dated: 12.05.2023 (Neha Sharma) CJ-01(South)Saket/New Delhi/12.05.2023 Note :-This judgment contains thirty one pages and all the pages have been checked and signed by me.
(Neha Sharma) CJ-01(South)Saket/New Delhi/12.05.2023 Page No. 32 of 32 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi